Piel v Barret [2023] PGNC 199; N10345 (22 June 2023)

N10345

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 208 OF 2013

BETWEEN
JOHN PIEL
Plaintiff

AND
NICOLE BARRET
First Defendant

AND
KALAUDOGA KEMOA
Second Defendant

AND
PETER GUINNESS
Third Defendant

AND
TOAMI KULUNGA
COMMISSIONER OF POLICE
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J

2023: 27^th February & 22^nd June

LIABILITY – Trial – Tort of negligence – Tort of trespass – Trespass to land and chattel – Destruction and burning down of house – Breach of duty of care – Tort committed by members of police in performing or purporting to perform their functions – Vicarious liability – Proof of – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1(4)

ASSESSMENT OF DAMAGES – Trial – Award of damages – General damages – Special damages – Exemplary damages – Loss of value of house – Proof of – Valuation report produced – Lack of details - Damages awarded discounted by percentage for lack of material information in valuation report

Cases Cited

Thomas Yalbees & Ors v. Tom Amaiu, Inspector Perou N’Dranou & The State (2018) N7393
Jonah Yakop Yakuman v. Chief Inspector Gedion Kauke & The State (2021) N9167
James Waisime & Anor v. Aukoa Enterprises Ltd & Ors (2019) N7727
Bentojo v. Yakasa (2020) N8419
Mabiria v. Onopia (2021) N8911
Robin Martin v. Andy Bawa & The State (2021) N8946

Counsel:

Mr. J. Siki, for Plaintiff
No appearances, for First & Second Defendants
Ms. N. Aiwara, for Third, Fourth & Fifth Defendants

JUDGMENT

22^nd June, 2023

1. MAKAIL J: This is a trial on liability and assessment of damages based on the tort of trespass to land and chattel and tort of negligence.

Allegations of Trespass and Negligence

2. According to the allegations of fact pleaded in the writ of summons and statement of claim filed 19^th March 2013, the plaintiff is the registered proprietor of an interest in fee simple of a piece of land, having purchased it from the customary landowners on 8^th June 2011 in the sum of K100,000.00. The first defendant is the registered proprietor of an adjacent land described as Portion 2726C, Volume 43 Folio 45, Granville, Port Moresby, National Capital District. She held a Special Agriculture and Business Purpose Lease over this land.

3. Around January 2012 the plaintiff built a low-post high covenant three-bedroom house on the piece of land. Minor cosmetic interior works were required in the common room, toilet, kitchen, bathroom and three bed-rooms to complete it.

4. On or about 16^th April 2012 between 1.00 and 3.00 pm the first defendant in the company of two expatriate males and the second defendant with eight to ten members of the police arrived in private and police issued motor vehicles respectively. The first defendant announced to the occupants of the plaintiff’s land that she was the registered proprietor of the land and the plaintiff was illegally occupying it. The second defendant and members of the police ordered the occupants to vacate the land.

5. The first and second defendants including the members of the police collected pieces of dry timber or leftover building materials and piled them together in the living room of the house. The first defendant poured petrol from a plastic container on the pile. The second defendant then struck a match and lit the petrol- soaked pile of flammable materials. The fire spread and razed down the entire house.

6. For trespass, the plaintiff is the owner of the land, and the defendants illegally entered it without the plaintiff’s approval and set fire to his house. For negligence, the second defendant and members of the police owed a duty of care to protect lives and property and they breached the duty of care when they set fire to the house of the plaintiff. They come under the direction and supervision of the third and fourth defendants and were negligent in the discharge of their duties. As a result, the plaintiff suffered loss and seeks damages against the fifth defendant under the principles of vicarious liability under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

7. The plaintiff seeks general damages, special damages, exemplary damages, interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act and legal costs.

Defence

8. The first and second defendants did not file a defence.

9. On 16^th April 2013 the third, fourth and fifth defendants filed their defence. According to their defence they do not deny the allegation that the second defendant and members of the police assisted the first defendant to set fire to the plaintiff’s house, but they alleged that the second defendant and members of the police acted outside the scope of their employment or the third and fourth defendants did not authorise what they did and the fifth defendant should not be held vicariously liable under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

Liability

10. The defendants did not file and rely on any affidavits to deny the allegations. I have read the affidavit in support of Alex Kerolo sworn 21^st November 2013 and filed 18^th December 2013 (exhibit “P1”), affidavit in support of the plaintiff sworn 10^th February 2014 and filed 13^th February 2014 (exhibit “P2”), affidavit in support of Kili Koiro sworn 10^th February 2014 and filed 13^th February 2014 (exhibit “P3”), affidavit in support of Agnes Piel sworn 10^th February 2014 and filed 13^th February 2014 (exhibit “P4”), affidavit in response of the plaintiff sworn 6^th May 2014 and filed 7^th May 2014 (exhibit “P5”), affidavit in support of the plaintiff sworn 27^th July 2016 and filed 04^th August 2016 (exhibit “P6”), supplementary affidavit of the plaintiff sworn and filed 01^st November 2017 (exhibit “P7”), supplementary affidavit of the plaintiff sworn and filed 01^st December 2017 (exhibit “P8”), affidavit of Engelbert Turia sworn 25^th October 2022 and filed 26^th October 2022 (exhibit “P9”), affidavit of the plaintiff sworn 25^th October 2022 and filed 26^th October 2022 (exhibit “P10”) and affidavit of the plaintiff sworn 21^st December 2022 and filed 22^nd December 2022 (exhibit “P11”).

11. It is, therefore, the findings of the Court that the plaintiff is the registered proprietor of an interest in fee simple of a piece of land, having purchased it from the customary landowners on 8^th June 2011 in the sum of K100,000.00. The first defendant is the registered proprietor of an adjacent land described as Portion 2726C, Volume 43 Folio 45, Granville, Port Moresby, National Capital District. She held a Special Agriculture and Business Purpose Lease over this land.

12. Around January 2012 the plaintiff built a low-post high covenant three-bedroom house on the piece of land. Minor cosmetic interior works were required in the common room, toilet, kitchen, bathroom and three bed-rooms to complete it. The first defendant disputed the location where the plaintiff built the house claiming that it was built on her side of the land. The matter was brought to the District Land Court and was determined in favour of the landowners who sold the land to the plaintiff. A further proceeding was commenced in the National Court by the first defendant against the plaintiff and dismissed in 2012.

13. On or about 16^th April 2012 between 1.00 and 3.00 pm the first defendant in the company of two expatriate males and the second defendant with eight to ten members of the police arrived in private and police issued motor vehicles respectively. The first defendant announced to the occupants of the plaintiff’s land that she was the registered proprietor of the land, but the plaintiff was illegally occupying it. The second defendant and members of the police ordered the occupants to vacate the land.

14. The first and second defendants including the members of the police collected pieces of dry timber or leftover building materials and piled them together in the living room of the house. The first defendant poured petrol from a plastic container on the pile. The second defendant then struck a match and lit the petrol- soaked pile of flammable materials. The fire spread and razed down the entire house. The first and second defendants were arrested and charged for arson. While the first defendant was awaiting trial in the National Court, she absconded bail and fled to Australia. Their cases in the National Court are still pending.

Issues

15. As to the tort of trespass, there is no question that the defendants entered the plaintiff’s land without his approval. The legal question is whether their conduct was justified. If not, whether the second defendant and members of the police performed or purporting to perform their functions or whether the third and fourth defendants authorised their actions.

16. As to the tort of negligence, there is no question that the first defendant owes a duty of care not to cause harm or injury to another person or property and the second defendant and members of the police owe a duty of care to protect lives and property. The legal issue is whether the first defendant breached the duty of care when she set fire to the plaintiff’s house. Similarly, whether the second defendant and members of the police breached the duty care when they assisted the first defendant set fire to the plaintiff’s house. If so, whether they performed or purported to perform their functions in the course of their duties or whether the third and fourth defendants authorised their actions.

Proof of Trespass and Negligence

17. Based on the Court’s finding, I am satisfied that the second defendant and about ten members of the police committed the tort of trespass to land and chattel. The plaintiff is the owner of the land, and the defendants illegally entered it without the plaintiff’s approval and set fire to his house. I am further satisfied they breached their duty of care when they assisted the first defendant set fire to the plaintiff’s house. Furthermore, I am satisfied that the first and second defendants and members of the police acted in concert to set fire to the plaintiff’s house. The next issue is whether the second defendant and members of the police performed or purported to perform their functions in the course of their duties or whether the third and fourth defendants authorised their actions.

18. Mr Siki of counsel for the plaintiff submits that the second defendant and members of the police performed or purported to perform their functions in the course of their duties because of these factors:

(a) they acted on a complaint by the first defendant that the plaintiff was an illegal occupant of the land and sought to have him evicted.

(b) they were wearing police issued uniforms.

(c) they were using police issued motor vehicles.

(d) they were armed with police issued firearms.

19. In seeking to have the entire claim dismissed, Ms Aiwara of counsel for the third, fourth and fifth defendant submits that the plaintiff failed to plead in the statement of claim that the conduct of the second defendant and other unidentified members of the police were within the scope of their employment. In the alternative, their conduct was clearly outside their scope of employment and criminal in nature. To back this submission, learned counsel refers to a letter from Sergeant M. Kend dated 10^th April 2014 and submits that the conduct of the second defendant and the other unidentified members of the police were in breach of the fourth defendant’s direction and the fifth defendant should not be vicariously liable.

20. This letter may be found in the affidavit of the plaintiff (exhibit “P5”) and reads:

“The Royal PNG Constabulary under the command and control of the Police Commissioner Toami Kulunga there is no tolerance of police brutality and destruction of property. As you can see Police Services launched its Modernization Program in 2012. As there is zero tolerance of police abuse.”

21. I reject Ms Aiwara’s first line of submissions because while it has not been expressed well in the statement of claim that the second defendant and members of the police performed or purported to perform their functions in the course of their duties, reading it in its entirety, it is sufficiently clear that the second defendant and unidentified members of the police performed or purported to perform their functions in the course of their duties when they set fire to the plaintiff’s house.

22. As to Ms Aiwara’s alternative submissions, I accept that based on Sergeant Kend’s letter, there is a zero-tolerance policy in the Royal Papua New Guinea Constabulary on abuse by members of the Constabulary. However, it is a statement of principle or rule that must be observed by members of the Constabulary. That is all that it does. Where there has been abuse by members of the Constabulary, a victim of the abuse may sue for damages and prove that the abuse occurred within the scope of employment of the members of the Constabulary and the State, as the employer, is vicariously liable.

23. This is because there may be cases where the members of the police went on a frolic, and it is arguable that the State should not be held vicariously liable for their actions or omissions and there may be cases where they performed or purported to perform their functions in the course of their duties. The underlining factor is each case must be decided on its own facts and the test is whether the member of the police was performing or purporting to perform his functions in the course of his duties: Thomas Yalbees & Ors v. Tom Amaiu, Inspector Perou N’Dranou & The State (2018) N7393.

24. In this case, the facts do not fit the facts of Jonah Yakop Yakuman v. Chief Inspector Gideon Kauke & The State (2021) N9167 where it was held that the abuse by a member of the police in shooting and wounding the plaintiff occurred outside the scope of employment of the police because he was providing security and escort for his superior at a private event, namely “Rausim Haus Krai” feast and the State was not held vicariously liable.

25. The Court accepts the submissions of Mr Siki that it is sufficient to find that the second defendant and unidentified members of the police performed or purported to perform their functions in the course of their duties because they acted or purported to act on a complaint by the first defendant that the plaintiff was an illegal occupant of the land and sought to have him evicted, that they were wearing police issued uniforms, that they were using police issued motor vehicles and that they were armed with police issued firearms. In the process of evicting the plaintiff, the second defendant set fire to his house. For these reasons, I am satisfied that the fifth defendant, as their employer, is vicariously liable under Section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

26. There shall be a judgment on liability against the defendants, with damages to be assessed.

Assessment of Damages

27. According to the orders sought in the prayer for relief in the statement of claim, the plaintiff seeks:
(a) General damages.

(b) Special damages.

(c) Exemplary damages.

(d) Interest pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act, 2015.

(e) Legal costs.

28. As there are two different actions, the remedies for trespass are not the same as those for negligence. For trespass, the remedies are an order for the return of the land or chattel or value of the land or chattel. Compensatory damages may be awarded in addition to the primary relief of return of the land or chattel. For negligence, the remedies will primarily be compensatory damages for pain and suffering.

General Damages for Trespass

29. Mr Siki refers to the case of James Waisime & Anor v. Aukoa Enterprises Ltd & Ors (2019) N7727 where the National Court (Kandakasi DCJ) awarded K50,000.00 as general damages for trespass to the plaintiffs’ land and submits the Court award a sum of K100,000.00 as general damages to compensate the plaintiff for trespass to his land and house. He submits that the sum of K100,000.00 is sought because unlike James Waisime case (supra) where the plaintiffs were prevented from occupying their land and had to obtain a Court order to have the defendants vacate it, this case is much more serious because not only did the defendants enter the plaintiff’s land but set fire to his house which was completely razed down.

30. Ms Aiwara objects to the Court making an award under this head of damages because the claim is fundamentally flawed. It has no basis in the pleadings found in the statement of claim. As a matter of law, I accept this proposition. However, Ms Aiwara has not demonstrated how the lack of pleadings has prejudiced the defendants she represents. If it was an issue, she should have served a notice or applied for an order for the plaintiff to give better and further particulars of the general damages under Order 8, rule 29 of the National Court Rules (“NCR”). She has left it and it is too late now to return to address the issue of lack of pleadings. The important consideration is whether the defence has been prejudiced in its defence and she has not demonstrated any.

31. I accept Mr Siki’s submissions for the reasons he has outlined. It is a correct and fair summary of the remedy for tort of trespass, the factual distinction between James Waisime case (supra) and this case, the trespass being aggravated by the burning down and loss of a newly built house where a sum higher than the one awarded in James Waisime case (supra) is appropriate. The sum to award will not be K100,000.00 as sought because the plaintiff is also seeking damages for the loss of house because of the trespass. I will award K60,000.00 under this head of damages.

Special Damages for loss of house

32. Special damages must be strictly proved. Here the plaintiff seeks damages for the value of the house, if allowed, it will be awarded to compensate the plaintiff for the tort of trespass and for negligence. His counsel Mr Siki submits the Court award a sum of K419,000.00. This sum is based on the valuation report prepared by Mr Engelbert Turia, a registered valuer immediately after the loss of the house. Ms. Aiwara submits the valuation report is exaggerated and must be reduced by 90%. This leaves a sum of K26,000.00.

33. Mr Turia based his valuation on a market value but does not state how he arrived at the value he has put on the house, that is the primary source of the information as to the value of the house, and this Court does not know if the value is based on costs of building materials or value of similar and comparable houses as that of the plaintiff. Further, while the valuation report refers to the location and access to the property including services and amenities, the house itself was located at Taurama Valley, I accept Ms Aiwara’s submission that it does not refer to and state if the interior of the house has been fitted with kitchenware, cookware, beds, furniture, electric goods, etc... Even the plaintiff and the carpenters who built the house did not say the house has been fully equipped with these household goods and wares. In my view, these are material or key information that are lacking or missing and constitute discrepancies in the valuation report.

34. Where the valuation report lacks material of key information, the Court has taken the approach by discounting the sum claim by a percentage. In Bentojo v. Yakasa (2020) N8419, a registered valuer inspected the plaintiffs’ properties that same afternoon and a valuation report was later prepared, but the National Court discounted the claims by 90% after considering deficiencies in the evidence. In Mabiria v. Onopia (2021) N8911 the National Court found that the valuation report strained credibility and was exaggerated. The Court discounted the claim by 90%.

35. However, based on the photographs tendered by the plaintiff. I am satisfied that the house was a newly built one as opposed to one that has been built and used for years with no or less maintenance and it would not be a true assessment of its value if the value placed by Mr Turia is discounted by 90% as was done in the above two cases. I will discount the sum by 50%. Thus, discounting the sum of K419,000.00 by 50% gives K209,500.00. This sum is awarded for value of loss of house.

Damages for breach of constitutional rights

36. The plaintiff seeks damages for breach of constitutional rights. However, the Court accepts Ms Aiwara’s submission that the plaintiff failed to plead the claim for breach of constitutional rights and seek damages for breach of constitutional rights in the prayer for relief in the statement of claim. Because of that, the defendants were not aware that the plaintiff will seek damages under this head of damages. For this reason, this head of damages is disregarded.

Exemplary damages

37. In their respective submissions, each counsel accepts that an award of exemplary damages is discretionary and is intended to punish the tortfeasor and deter potential tortfeasors in the future. However, they do not agree with each other that the State should be ordered to pay exemplary damages.

38. Mr Siki submits that the conduct of the second defendant and members of the police entering the land of the plaintiff and assisting the first defendant in set the fire to the house of the plaintiff is serious and shows that they lacked discipline. However, given that there is a zero-tolerance policy on abuse by members of the police in the Constabulary, I consider that for exemplary damages, where the abuse by members of the police are so serious and of a criminal nature, they should be ordered to personally pay exemplary damages.

39. I am satisfied that each member of the police involved in the tortious act must be ordered to pay exemplary damages to teach him a lesson and to stop other would-be members of the police from committing this tortious act in future. The sole member of the police identified by the plaintiff is the second defendant and he will be ordered to personally pay a sum of K10,000.00 to the plaintiff.

Apportionment of Damages

40. The next question is whether damages should be apportioned between the defendants. I am satisfied that it was at the instigation of the first defendant that the second defendant led the group of members of the police from Hohola Police Station to the land of the plaintiff and assisted the first defendant to set fire to the plaintiff’s house. One act led to the other and the plaintiff was the victim of the concerted actions of the defendants. I am further satisfied that damages must be apportioned in equal shares between the defendants. The apportionment will be based on general damages of K60,000.00 and special damages for loss of house of K209,500.00 which gives a total sum of K269,500.00. In equal shares, the first defendant will pay a sum of K134,750.00 and the rest of the defendants will pay a sum of K134,750.00. I so order.

Interest

41. First, on the question of rate of interest to award, in their respective submissions, each counsel accepts that for the first defendant, interest is at the rate of 8% per annum and for the other defendants, interest is at the rate of 2% per annum under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

42. Secondly, on the question of time for interest to run, the Court notes that prior to the directions hearing on 19^th October 2022 the last affidavit filed by the plaintiff was his supplementary affidavit filed on 01^st December 2017 (exhibit “P8”). Except for the huge backlog of cases in Civil Track 1 and the Covid-19 Pandemic in 2020 and 2021, the plaintiff did not explain what steps he took to get the matter listed for directions hearing and pre-trial conference to obtain a trial date between December 2017 and 19^th October 2022.

43. In Robin Martin v. Andy Bawa & The State (2021) N8946, the Court declined to award interest from the date of issue of writ to date of judgment where the plaintiff did not explain the delay in litigating the matter at [46] as follows:

“While it is noted that the State Claims Court Track One has a huge backlog of pending cases, there is no explanation by the plaintiff in relation to the long delay in getting this litigation to trial after close of pleadings. For this reason, pre-judgment interest is awarded from the date of trial to the date of judgment which shall be calculated by the parties. As to post-judgment interest, it is awarded at the rate of 2% from the date of judgment on liability until final settlement. The 2% pre-judgment interest and post judgment interest are awarded on part of the total sum of damages awarded which is K240,890.00. This sum comprises of general damages, damages for breach of constitutional rights and special damages. The award of exemplary damages is excluded.”

44. For this reason, I do not think it is fair to award interest from the date of filing of the writ of summons to date of judgment or thereafter. In fairness to the defendants and noting the purpose of interest is to compensate the plaintiff for being kept out of money rather than a penalty, interest is awarded from the date of the last directions hearing of 19^th October 2022 to date of judgment and until final settlement.

45. Finally, on the question of whether interest should be awarded on part or whole of the judgment, I consider that because of the award of exemplary damages against the second defendant, interest will be awarded on part of the judgment sum as follows; judgment sum of K134,750.00 against the first defendant and K134,750.00 against the second, third, fourth and fifth defendants.

46. For the first defendant, interest is awarded at the rate of 8% per annum on the judgment sum of K134,750.00 from date of the last directions hearing of 19^th October 2022 to date of judgment and until final settlement pursuant to Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

47. For the second, third, fourth and fifth defendants, interest is awarded at the rate of 2% per annum on the judgment sum of K134,750.00 from date of the last directions hearing of 19^th October 2022 to date of judgment and until final settlement pursuant to Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

Costs

48. Finally, the plaintiff seeks costs of the proceedings. The defendants’ learned counsel makes no submission on costs. The general rule is that costs shall follow the event. It means the successful party shall have its costs paid by the losing party, on a party-party basis. For this reason, it is ordered that the defendants shall pay the plaintiff’s costs of the proceedings, on a party-party basis, to be taxed, if not agreed.

Final Order

49. The terms of the final order of the Court are:

1. Judgment on liability is entered against the defendants.

2. Judgment is entered against the defendants in the total sum of K269,500.00 to be paid in equal portion as follows:
   

(a) The first defendant shall pay K134,750.00 and

(b) The second, third, fourth and fifth defendants shall pay K134,750.00.

3. Judgment is entered against the second defendant in the sum of K10,000.00 as exemplary damages.
   
4. Interest is awarded against the first defendant at the rate of 8% per annum on the judgment sum of K134,750.00 from date of the last directions hearing of 19^th October 2022 to date of judgment and until final settlement pursuant to Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
5. Interest is awarded against the second, third, fourth and fifth defendants, at the rate of 2% per annum on the judgment sum of K134,750.00 from date of the last directions hearing of 19^th October 2022 to date of judgment and until final settlement pursuant to Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
6. The defendants shall pay the plaintiff’s costs of the proceedings, on a party-party basis, to be taxed, if not agreed.

________________________________________________________________
Jeffery Siki Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Third, Fourth & Fifth Defendants